| Matter of Hayes v DiNapoli |
| 2010 NY Slip Op 04910 [74 AD3d 1545] |
| June 10, 2010 |
| Appellate Division, Third Department |
| In the Matter of John R. Hayes, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Paul Groenwegen of counsel), forrespondent.
Malone Jr., J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondent whichdenied petitioner's applications for accidental and performance of duty disability retirementbenefits.
While employed as an officer with the City of Yonkers Police Department in 1991,petitioner sustained an injury to his back as a result of a minor motor vehicle accident thatoccurred while he was on duty. In 1993, petitioner again sustained an injury to his back while onduty when he lost his footing and the suspect that he had apprehended fell on top of him.Petitioner retired in 2003, as a detective, after allegedly aggravating his back injury during theexecution of a search warrant. He thereafter submitted applications for accidental andperformance of duty disability retirement benefits, which were initially denied. Following ahearing, the Hearing Officer recommended a denial of the applications, based upon his findingsthat petitioner was not permanently incapacitated from the performance of his duties and, further,[*2]that the 1993 injury was not an accidental injury.[FN*]Petitioner commenced this CPLR article 78 proceeding to challenge respondent's subsequentdetermination, which adopted the Hearing Officer's recommendation.
We confirm. Initially, "an injury that occurs without an unexpected event, as the result ofactivity undertaken in the performance of ordinary employment duties (considered in view of theparticular employment in question) is not an accidental injury" (Matter of Quigley v Hevesi, 48 AD3d1023, 1024 [2008] [citations omitted]; see Matter of McGerald v DiNapoli, 51 AD3d 1328, 1329 [2008];see also Retirement and Social Security Law § 363). Here, substantial evidencesupports respondent's determination that the 1993 injury was not an accidental injury. The recordestablishes that the incident occurred while petitioner was escorting an apprehended suspect up amuddy slope to the patrol car in the course of his usual duties as a police officer. Contrary topetitioner's contention, the fact that petitioner and the suspect lost their footing and fell is not anabnormal or unforeseeable risk in the context of those duties (see Matter of Hulse v DiNapoli, 70 AD3d 1235, 1236 [2010];Matter of Quigley v Hevesi, 48 AD3d at 1024).
Further, petitioner did not satisfy his burden of establishing that he was permanentlyincapacitated from performing his duties as a result of the injury that he sustained in the fall (see Matter of Johnson v New York State &Local Retirement Sys., 54 AD3d 1130, 1130 [2008]). In that regard, petitioner's medicalexpert opined that petitioner was no longer able to perform his duties as a result of his injuries.However, although petitioner presented subjective complaints of pain, the expert found mostresults of his physical examination of petitioner to be negative or normal. The expert for the NewYork State and Local Retirement System, on the other hand, found that petitioner exhibited"marked symptom magnification" and had "voluntarily restricted" his movements on exam. Theexpert concluded that the findings upon objective testing, including two MRI images, were notconsistent with petitioner's subjective complaints of pain and opined that petitioner was notpermanently incapacitated from performing his duties. Respondent has the exclusive authority tocredit the testimony of one expert over another and resolve conflicting medical evidence (seeMatter of Hulse v DiNapoli, 70 AD3d at 1237; Matter of Quigley v Hevesi, 48AD3d at 1025). Here, the rational and fact-based opinion of the Retirement System's expert,which was made after a physical examination of petitioner and a review of his medical records,provides substantial evidence to support respondent's determination that petitioner is notpermanently incapacitated from performing his duties (see Matter of Hulse v DiNapoli,70 AD3d at 1237; Matter of Quigley v Hevesi, 48 AD3d at 1025).
Peters, J.P., Rose, Stein and McCarthy, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Although petitioner cited boththe 1991 and the 1993 incidents in his initial applications, subsequent thereto he relied upon onlythe 1993 incident. Notably, at the hearing, petitioner's medical expert testified that he did notconsider the 1991 incident to be "of any major consequence."